Division of Property Flashcards
Community Property
Presumes equal distribution of marital property
Only 9 states use this
Equitable Distribution
*as opposed to Community Property
Requires fair and just distribution of marital property
Most states follow
Marital Property
Property acquired during the marriage
Broadly applied, applies retirement benefits, and sometimes, equity in nonmarital property (can apprecition be attributed to spousal labor)
Title is immaterial
Exceptions to marital property
- Property acquired before the marriage
- Excluded in a valid agreement
- Acquired by gift or inheritance
- Mortagaged or otherwise encumbered in good faith b4 final seperation date
- Award or settlement payment for something that occurred b4 the marriage
Factors in Distribution of Marital Property
- Length of mariage
- prior marriages
- Age, health, earnings, earning potential, liabilities, and needs of both
- Contributions to education
- Needs for future acquisitions
- Income, medical needs, retirement of both
- Contributions to increases in MP (housemaking and child-rearing)
- Value of SP
- Reduction in valuation of MP by one spouse
- Standard of living
- Economic circumstances
- Custodianship of minor children
Professional licenses or degrees
As marital Property
- Majorty do not treat as MP
- An acquisistion of knowledge
- May look to increased earning potential (can affect alimony)
- May use Cost-value Approach - reimbursement for actual contribution to education and related living expenses
Retirement or Pension Plans
As MP
Acquired during the marriage are MP
Personal Injury Claim Proceeds
as MP
There are two basic approaches:
1. Marital property - if cause of action occurred during marriage, it is MP
1. Separate and Marital
* Separate = compensaotyr damages for pain, suffering, disability, and loss. Consortium losses also.
* Marital - Lost wages, loss of earning capacity, medical expenses
Goodwill
As MP
Marital property
Accumulated sick and Vacation Days
As MP
Jx are split:
1. accrued vacation and sick days are marital property subject to division at the time of dissolution;
2. accrued vacation and sick days are marital property but are subject to distribution when received, as opposed to the time of dissolution; and
3. accrued vacation and sick days are not marital property.
Future interest in property
As MP
Not marital property
Social Security Benefits
As MP
Not marital property
Post-separation Property
Generally, property you get before divorce is granted is still MP
Some states say is SP if permanantly separated
Stock Options
As MP
Options acquired during the marriage are marital property even if they will not be exercised until after the marriage.
Modification of Property Division Award
Divorce
Not modifiable as it is based on the parties’ assets at the time of divorce. Changes in circumstances do not matter.
